S v Immelman

• Jurisdiction: South Africa
• Judge: Jansen JA, Rabie JA and Corbett JA
• Judgment Date: 30 May 1978
• Citation: 1978 (3) SA 726 (A)
• Hearing Date: 08 May 1978
• Court: Appellate Division

Corbett JA:

The appellant was indicted in the Witwatersrand Local Division, together with three other persons (W von Killian, D Lee and F J Breedt) on the following three counts: (1) fraud, (2) contravening reg 2 (1) of the Exchange Control Regulations ("the Regulations") and (3) G contravening reg 3 (1) (b) of the Regulations. There were, in addition, certain alternative charges under counts (1) and (2) but it is not necessary to refer to them. Appellant was tried separately from his co-accused. Upon arraignment he pleaded guilty to fraud under count 1 and guilty to an attempt to contravene reg 2 (1) under count 2. To count 3 he H pleaded not guilty. The State accepted his pleas and he was found guilty in accordance therewith on counts 1 and 2 and acquitted on count 3. Evidence was led by both the State and the defence. The State called Von Killian, who by that stage had been tried and sentenced on the same indictment, and the appellant and his wife gave evidence for the defence. The trial Judge took the two counts together for the purposes of sentence and imposed a fine of R10 000 or two years' imprisonment plus four years' imprisonment. The appellant appeals to this Court (with the leave of the trial Judge) against the sentence.

Corbett JA

[The learned Judge then analysed the evidence and continued.]

Two other matters relevant to the question of sentence should be mentioned. Firstly, in re-examination of the appellant his counsel referred to the R10 000 which Von Killian had invested in the business:

A "You mentioned that you got R10 000 invested, is this the money that came from Mr Von Killian? - That is correct.

And what are your prepared to do with this money? - Well, I am prepared to forfeit this amount of money by way of fine, if I should be fined."

B The Court thereupon questioned him about this amount, raising the point as to whether the money did not really belong to Von Killian. The evidence he gave was rather vague. It amounted to this that he (appellant) purchased a very expensive motor car, costing over R12 000, for Von Killian and the R10 000 was deposited with the bank as security for the purchase of the C motor car on hire-purchase. Appellant had been paying monthly instalments on the motor car. The second matter is the sentence meted out to Von Killian for his complicity in the crime. It was seven years' imprisonment. This was ordered to run concurrently with a sentence of five years' imprisonment imposed in respect of the prior transaction.

The trial Judge's judgment on sentence reads as follows:

D "Counsel suggested to me that you do not deserve to go to prison without an alternative of staying out of it. I cannot agree with this at all. You definitely deserve to be punished by a substantial period in jail but I do think that you do not deserve as big a punishment as Von Killian received. The two counts will be taken together for purposes of sentence which will be R10 000 fine or two years' imprisonment plus four years' imprisonment."

E The practice of taking more than one count together for the purpose of sentence (ie the imposition of what I shall, for convenience, term a "globular sentence") was recently commented upon by this Court in the case of S v Young 1977 (1) SA 602 (A) where TROLLIP JA stated at (610E - H):

"That procedure is neither sanctioned nor prohibited by the Criminal Procedure Act 56 of 1955. Where multiple counts are closely connected or similar in point of time, nature, seriousness, or otherwise, it is F sometimes a useful, practical way of ensuring that the punishment imposed is not unnecessarily duplicated or its cumulative effect is not too harsh on the accused. But according to several decisions by the Provincial Divisions (see, eg, S v Nkosi 1965 (2) SA 414 (C) where the authorities are collected) the practice is undesirable and should only be adopted by lower courts in exceptional circumstances. The main reason for frowning upon the practice mentioned in these cases is the difficulty it G might create on appeal or review especially if the convictions on some but not all of the offences were set aside. As any sentence imposed by this...